Citation Nr: 21010805 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-07 074 DATE: February 25, 2021 ORDER Service connection for a lumbar strain is denied. Service connection for excessive weight gain (hereinafter obesity) is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder, anxiety, depression, obsessive compulsive disorder, psychotic disorder, and posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for chronic fatigue syndrome is remanded. FINDINGS OF FACT 1. The weight of the evidence is against finding that the Veteran’s lumbar strain began during active service or is otherwise related to an in-service injury or disease. 2. Obesity is not a disease or injury for which service connection may be established. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar strain are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. Entitlement to service connection for obesity is denied as a matter of law. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.310; VAOPGCPREC 1-2017. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training with the United States Navy from November 1985 to May 1986 and active duty from May 1990 to September 1991. These matters are before the Board of Veterans’ Appeals (Board) on appeal from January 2013, April 2013, and November 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office RO. The Veteran testified before the Board at a hearing held by the undersigned in May 2018. A transcript of the hearing is of record. Thereafter, the Board remanded the claims in January 2019 for further development.   Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). 1. Entitlement to service connection for a lumbar strain is denied. The Veteran and his attorney contend that the Veteran’s back condition is related to an incident where a fellow servicemember jumped on his back and an injury lifting furniture. See Board Hearing Transcript, May 2018; Decision Review Officer Hearing Transcript, October 2014. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of lumbar strain and evidence shows that in-service back injuries occurred, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of lumbar strain began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the Veteran was not diagnosed with lumbar strain until April 2013, decades after his separation from service. While the Veteran is competent to report having experienced symptoms of back pain since service, he is not competent to provide a diagnosis in this case or determine that the symptoms were manifestations of his current diagnosis of lumbar strain. Furthermore, the Board acknowledges the two April 2013 buddy statements, which reflect that the Veteran reported having back problems to them since they met him around 17 years prior to submitting their statements in April 2013, which would be in about 1996. The Veteran’s friends are competent to report the symptoms that the Veteran reported to them, but they are not competent to determine that the symptoms are related to his in-service lumbar spine injuries. The issue is medically complex, as it requires the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Additionally, they did not meet the Veteran until about 5 years after his service; as such, their statements only support that the Veteran experienced back pain several years after service. Further, on April 2013 VA examination, the Veteran reported that he injured his back in 1990 when a fellow service man jumped on his back and that he reinjured the back in 1991 when he was lifting furniture. The Veteran stated that he was not treated after the first injury and received medication and an exercise program after the second injury. He also reported falling twice in 2012 and receiving medication at that time. The VA examiner reviewed the Veteran’s claims file and opined that the Veteran’s lumbar strain was less likely than not incurred in or caused by the Veteran’s service. In support of the opinion, the VA examiner reasoned that there is a prolonged period of no documentation that the Veteran had any ongoing lumbar spine disability or treatment, so to create a nexus or chronicity from the in-service events. In addition, the VA examiner noted that it is far more likely as not that the Veteran’s obesity is the main factor in the Veteran’s lumbar spine condition. The examiner’s opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting rationale. As such, the Board gives much probative weight to the VA examiner’s opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). In summary, the preponderance of the evidence is against a finding that the Veteran’s current lumbar strain is related to service. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran’s claim for service connection, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for excessive weight gain is denied. The Veteran and his attorney contend that the Veteran’s obesity is directly related to his active service. See VA Form 21-4138, Statement in Support of Claim, dated May 7, 2012. In the alternative, they contend that the Veteran’s obesity is related to his acquired psychiatric disorder. See VA Form 21-4138, Statement in Support of Claim, dated January 8, 2013; Decision Review Officer Hearing Transcript, dated October 28, 2014. VA’s General Counsel has issued a precedential opinion concerning service connection based on obesity. See VAOPGCPREC 1-2017 (Jan. 6, 2017). Precedent opinions issued by VA’s chief legal officer are binding on the Board. 38 U.S.C. § 7104(c). VAOPGCPREC 1-2017 concludes that obesity per se is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore service connection may not be established on a direct basis. Obesity is also not a disability for the purposes of secondary service connection per 38 C.F.R. § 3.310. While service connection cannot be established for obesity as a matter of law, obesity may act as an “intermediate step” between a service-connected disability and a current disability that may be service-connected on a secondary basis per § 3.310. However, here, the Veteran has contended that his obesity is directly related to his service or, in the alternative, secondary to his acquired psychiatric disorder. As such, service connection for obesity must be denied as a matter of law. For the reasons stated in VAOPGCPREC 1-2017, the Board finds that obesity does not constitute a disease, injury or event for the purposes of 38 U.S.C. §§ 1110 and 1131 and service connection is denied as a matter of law. REASONS FOR REMAND Initially, as it pertains to the Veteran’s claims for service connection for an acquired psychiatric disorder, chronic fatigue syndrome, and fibromyalgia, further development of the Veteran’s alleged service in Southwest Asia, and in particular in Bahrain, as the Veteran has alleged, is necessary. The Board notes that following its request in the January 2019 Board remand for the Veteran’s complete service personnel records, additional service personnel records have been added to the file. However, the exact locations and places of the Veteran’s service are still unclear from the record, including whether he served in Southwest Asia. The Board acknowledges the “Response: 99” in the military personnel records that contains the notation of “we are unable to determine whether or not this Veteran served in Southwest Asia.” However, the Veteran’s service personnel records reflect that he received the Southwest Asia Service Medal for service from August 2, 1990 to December 4, 1990. The award of the Southwest Asia Service Medal does not necessarily denote service that qualifies for the undiagnosed illness provisions of 38 C.F.R. § 3.317, which are pertinent to his claims seeking service connection for fibromyalgia and chronic fatigue syndrome. It also does not indicate that the Veteran had service in Bahrain. The Veteran’s service personnel records reflect that during the time that he was awarded the Southwest Asia service medal he was serving with the Naval Mobile Construction Battalion Seven. The Veteran testified at his October 2014 Decision Review Officer hearing that he was in Bahrain from October 1990 to December 1990. Therefore, upon remand, further steps should be taken to determine the locations of the Veteran’s unit during the time period when the Veteran received the Southwest Asia service medal. Upon completing all necessary research, the AOJ should document the claims file of such research and inform the Veteran and his attorney of the findings. 1. Entitlement to service connection for fibromyalgia is remanded. In addition to the development of the Veteran’s service noted above, a remand is required to afford the Veteran a VA examination for his fibromyalgia claim. An October 2012 private examination in the Veteran’s Social Security Administration records reflects that the Veteran reported multiple joint pains. Furthermore, he reported the pain is aching in nature and moderate to severe in intensity. Given the reports of multiple joint pains, a VA examination is necessary to determine the nature and etiology of his joint pain. 2. Entitlement to service connection for an acquired psychiatric disorder is remanded. In addition to the development of the Veteran’s service noted above, a remand is required to obtain an additional VA examination and opinion for his acquired psychiatric disorder. Following a November 2019 VA examination, the VA examiner opined that the Veteran’s acquired psychiatric disorder was less likely than not incurred in or caused by the Veteran’s service. In support of the opinion, the VA examiner reasoned that the “Veteran was sub-functional (since early childhood) and had significant mental health issues prior to joining the service.” Furthermore, the VA examiner reasoned that “[t]he events that occurred while he was in the service exacerbated these pre-existing psychological conditions.” A review of the records, including the Veteran’s service treatment records and his October 1985 enlistment examination, do not contain any reports of a psychiatric disorder. However, the History sections of the June 2012 and November 2019 VA examinations reflect reports of psychiatric symptoms during the Veteran’s childhood. As an acquired psychiatric disorder was not noted on entrance, but there is an indication that such disability manifested in service, the presumption of soundness attaches. Therefore, there must be clear and unmistakable evidence that any acquired psychiatric disorder both preexisted service and was not aggravated by service. 38 C.F.R. § 3.304; see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). As the record is unclear as to whether the Veteran had an acquired psychiatric disorder that preexisted service and whether such condition was aggravated by service, an additional VA examination and opinion are necessary. 3. Entitlement to service connection for hypertension is remanded. The Board cannot make a fully-informed decision on the issue of service connection for hypertension because no VA examiner has opined whether the Veteran’s diagnosed hypertension is related to service, to include any elevated blood pressure readings during service. Therefore, the issue is remanded to obtain an opinion as to the etiology of the Veteran’s hypertension. 4. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran underwent a VA examination in November 2014 for an evaluation of his bilateral hearing loss. Following the examination, the VA examiner opined that the Veteran’s right ear hearing loss is not at least as likely as not caused by or a result of an event in service. The VA examiner opined that the Veteran’s left ear hearing loss is at least as likely as not caused by or a result of an event in service. However, the rationale provided for the positive nexus opinion for the Veteran’s left ear hearing loss is a duplicate of the rationale provided for the negative nexus opinion for the Veteran’s right ear hearing loss. Given the internal inconsistency of this opinion, the Board requested a clarifying opinion in the January 2019 remand. A VA examiner issued an additional opinion in September 2020 following a VA audiological examination. The VA examiner opined that the Veteran’s bilateral hearing loss is less likely as not related to the Veteran’s military service. In support of the opinion, the VA examiner reasoned that the Veteran’s hearing thresholds were normal throughout service with no threshold shifts noted. The Board concludes that this rationale is insufficient as the VA examiner did not address the etiology of the Veteran’s current bilateral hearing loss disability, irrespective of no hearing loss or threshold shifts being shown in service. Thus, an additional VA opinion is necessary. The matters are REMANDED for the following actions: 1. Attempt to determine the locations of the Veteran’s service from August 2, 1990 to December 4, 1990 (the dates his service qualified him to receive the Southwest Asia Service Medal), including determining the locations of his unit, Naval Mobile Construction Battalion Seven, during this time period. If more details are needed, contact the Veteran to request the information. If there is still insufficient information to verify the locations of the Veteran’s service during this time, issue a Formal Finding outlining the steps taken to assist the Veteran and notify the Veteran and his attorney of the results of this development in accordance with 38 C.F.R. § 3.159(e). 2. Obtain and associate with the Veteran’s electronic record VA treatment records from October 2020 to the present. Contact the Veteran and afford him the opportunity to identify or submit any pertinent evidence in support of his claims, to include records of any private treatment. Based on his response, attempt to procure copies of all records which have not been obtained from identified treatment sources. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 3. After completing the development requested above, provide the Veteran an appropriate VA examination (or telehealth interview, if an in-person examination is not feasible) for the Veteran’s fibromyalgia claim. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. After reviewing the claims file, the examiner should provide opinions on the following questions: 4. Schedule the Veteran for an appropriate examination to determine the nature and etiology of [his/her] condition. The examiner must review the entire claims file, including a copy of this remand. The examiner should conduct all appropriate diagnostic testing. The examiner should then record all noted signs and reported symptoms and document all clinical findings.   The examiner is asked to respond to the following questions: (a.) Does the Veteran have a current diagnosis of fibromyalgia or has he had it at any time during the pendency of the claim (since February 2012)? (b.) If not, the examiner should discuss whether the Veteran has objective indications, as established by history, physical examination, and laboratory tests, of an undiagnosed illness or a medically unexplained chronic multi-symptom illness, manifested by muscle pain and joint pain that has existed for six months or more or exhibited intermittent episodes of improvement and worsening over a six-month period. A “medically unexplained chronic multisymptom illness” is defined as a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. The examiner must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation. 4. After completing the development requested above, provide the Veteran an appropriate VA examination (or telehealth interview, if an in-person examination is not feasible) to determine the nature, extent, and etiology of any acquired psychiatric disorder. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. After reviewing the claims file, the examiner should address the following: (a.) Is it clear and unmistakable (i.e., undebatable, obvious or manifest) that the Veteran had an acquired psychiatric disorder that preexisted military service? (b.) If, and only if, it is determined that the Veteran had an acquired psychiatric disorder that clearly and unmistakably existed prior to his military service, is there clear and unmistakable (i.e., undebatable, obvious or manifest) evidence that the acquired psychiatric disorder did not permanently increase in severity beyond the natural progression of the disability during active service (i.e., the disability was not aggravated by service)? (c.) If the examiner finds that the Veteran did not have an acquired psychiatric disorder that clearly and unmistakably preexisted service, or was not clearly and unmistakably aggravated by his military service, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran has a current acquired psychiatric disorder, including PTSD, obsessive compulsive disorder, adjustment disorder with mixed anxiety and depressed mood, depressive disorder, dysthymic disorder, and/or psychotic disorder, that is attributable to his active duty military service, to include any alleged in-service stressor? The examiner must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation. 5. After completing the development requested above, obtain a medical opinion from an appropriate medical professional for the Veteran’s hypertension claim. The electronic claims file must be made available to the medical professional for review in connection with the request for an opinion. If the medical professional determines that an in-person examination (including via telehealth interview) is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the medical professional should address the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension is related or attributable to his military service, to include elevated blood pressure readings, or service in Southwest Asia, if such service has been corroborated? The medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the medical professional cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation. 6. After completing the development requested above, obtain a medical opinion from an appropriate medical professional for the Veteran’s bilateral hearing loss claim. The electronic claims file must be made available to the medical professional for review in connection with the request for an opinion. If the medical professional determines that an in-person examination (including via telehealth interview) is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the medical professional should address the following: Is it at least as likely as not (50 percent or greater probability) that the Veteran’s current bilateral hearing loss is related or attributable to his military service, to include noise exposure and the incident in service where he was treated for hearing complaints that resolved after dead flies were removed from each ear? It should be noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the medical professional cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide supporting rationale as to why an opinion cannot be made without resorting to speculation. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Breitbach, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.